State of Kerala represent by the Secretary to Government, Fisheries Department, Fisheries and Ports, Government Secretariat, Thiruvananthapuram; Director of Fisheries, Vikas Bhavan, Thiruvananthapuram v. M.K. Mohanan, Inspector of Fisheries (Mechanization), Azhikode, Thrissur; V. Karthikeyan, Fisheries Development Officer Grade I, Tanur, Tirur, Malappuram District; K. Prabhakaran, Fisheries Development Officer, Grade II, Office of the Deputy Director of Fisheries, West Hill Kozhikode District; K.P. Mohammadsha, Fisheries Development Officer, Grade I, Office of the Joint Director of Fisheries, Kozhikode; Naseera C.H. (Addl. Respondent)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 4TH DAY OF AUGUST 2016/13TH SRAVANA, 1938 OP(KAT).No. 2770 of 2012 (Z) ----------------------------AGAINST THE ORDER/JUDGMENT IN TA 2099/2012 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 14-05-2012 PETITIONER(S): ------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, FISHERIES DEPARTMENT, FISHERIES AND PORTS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF FISHERIES VIKAS BHAVAN, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.T.RAJASEKHARAN NAIR RESPONDENTS : -------------- 1. M.K.MOHANAN, INSPECTOR OF FISHERIES (MECHANIZATION), AZHIKODE, TRICHUR. 2. V.KARTHIKEYAN, FISHERIES DEVELOPMENT OFFICER GRADE I, TANUR, TIRUR, MALAPPURAM DISTRICT. 3. K.PRABHAKARAN, FISHERIES DEVELOPMENT OFFICER, GRADE II, OFFICE OF THE DEPUTY DIRECTOR OF FISHERIES, WEST HILL KOZHIKODE DISTRICT. 4. K.P.MOHAMMADSHA, FISHERY DEVELOPMENT OFFICER, GRADE I, OFFICE OF THE JOINT DIRECTOR OF FISHERIES, KOZHIKODE. OP(KAT).No. 2770 of 2012 (Z) ADDL.5[th] RESPONDENT :- NASEERA C.H., KOTTAPPARAMBIL HOUSE, MELANGADI.P.O., KONDOTTY, MALAPPURAM, PIN 673648. (Addl.R5 impleaded as per order dated 4.8.2016 in I.A.No.1329/2013) R1 TO 3 BY ADV. SRI.N.NANDAKUMARA MENON (SR.) R1 TO 3 BY ADV. SRI.P.K.MANOJKUMAR R1 TO 3 BY ADV. SMT.HENA BAHULEYAN THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 04-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 2770 of 2012 (Z) ## APPENDIX ## PETITIONERS' EXHIBITS :- EXT.P1 : COPY OF THE ORDER OF T.A.2099/2012 OF THE KAT, THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS :- NIL. True copy P.A to Judge **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -----------------------------------------------------------------O.P.(KAT).No.2770 of 2012 -----------------------------------------------------------------Dated this the 4[th] day of August, 2016** ## **JUDGMENT** ## Ramachandra Menon, J. This Original Petition was filed nearly four years back, by the State and the Director of Fisheries, feeling aggrieved by the verdict dated 14.5.2012 passed by the Tribunal in T.A.No.2099/2012. Fact remains that, despite the several postings earlier, the matter is still to be admitted and hence put up for consideration before this bench. 2. Heard the learned Senior Government Pleader appearing on behalf of the petitioners as well as Sri.P.K.Manoj Kumar, learned counsel who entered appearance on behalf of the respondents concerned. 3. The sequence of events reveals that the applicants before the Tribunal were originally appointed in the Department of Fisheries as Lower Division Clerks, pursuant to the selection and advice given by the PSC, way back in the years 1978-791980. They completed the probation in the cadre of LDC. While so, as per Ext.P2 order dated 7.2.1984 issued by the 2[nd] 2 O.P.(KAT)No.2770 of 2012 respondent/2[nd] petitioner herein, the applicants were provisionally promoted to the cadre of Sub Inspector of Fisheries, which is a post in the 'Executive Wing' of the very same Department. As per the said order, it was made clear that the promotion and appointment by transfer to the post of Sub Inspector of Fisheries would be strictly provisional and until such time the regular candidates recruited through the PSC joined duty; alerting the beneficiaries concerned that they would have no claim for seniority over the regular hands to be advised by the PSC. It is stated that the applicants came to be appointed to the post of Sub Inspector of Fisheries as above and subsequently, they were promoted on a provisional basis, as Inspector of Fisheries as well, vide Ext.P3 order dated 9.11.2001. In the due course, the 2[nd] respondent published the final seniority list of the Lower Division Clerks of the Department as on 1.1.1999 as borne by Ext.P4 order dated 10.5.2002, wherein the applicants were listed at Serial Nos.6, 10, 143 and 144 respectively. 4. The heart-burn started when the applicants were not considered for promotion in the Ministerial wing, where they were O.P.(KAT)No.2770 of 2012 3 working earlier; despite a lien in the said wing by virtue of their position in the cadre of L.D.C. Claiming promotion in the Ministerial wing, they submitted representations at different levels but the same was not acted upon by the Authorities concerned. In the meanwhile, a similarly situated person by name Smt.D.Vijayamma who was junior to the 1[st] applicant, had moved the Government claiming to be re-posted as LDC by ordering reversion, so as to enable her to pursue her virtues by virtue of the position in the Ministerial wing. Simultaneously, the said person approached this Court by filing W.P.(C) No.18616/2003 which was disposed of as per Ext.P10 judgment dated 16.6.2003, directing the Government to consider the claim. Pursuant to the said direction, the claim was considered and rejected as per Ext.P11 order passed by the 2[nd] respondent, which was the subject matter of challenge in W.P.(C) No.25857/2003 filed before this Court. 5. After hearing both the sides, a learned Judge of this Court, placing reliance on the law declared by a Full Bench of this Court in **Balakrishnan Nair v. Ram Mohan Nair [1998 (1)** O.P.(KAT)No.2770 of 2012 4 **KLT 766 (F.B.)]** as to interpretation of Rule 8 of Part II of KS & SSR; allowed the Writ Petition vide Ext.P13. It was challenged by the State by way of W.A.Nos.1253/2006 and 1502/2006 wherein interference was declined and the verdict passed by the learned Single Judge was affirmed as per Ext.P14. Claiming for the similar relief, the applicants approached this Court by filing W.P. (C)No.11320/2008, which came to be transferred to the Kerala Administrative Tribunal, where it was renumbered as T.A.No.2099/2012. 6. The Government/Department contended before the Tribunal that the applicants were not entitled to get the benefit as sought for. They had already opted out, to be transferred to the Executive Wing and no objection was ever raised from their part in being promoted to the cadre of Sub Inspector in the Executive Wing and the subsequent promotion as Inspector as well. It was also pointed out that, probation of the applicants in the Executive Wing had already been declared in the concerned post after regularisation and this being the position, they could not come back to the Ministerial wing. The Tribunal observed that O.P.(KAT)No.2770 of 2012 5 absolutely no material was produced by the Government before the Tribunal to draw an inference to the fact that the service of the applicants was regularized in the Executive wing and that their probation was declared. Accordingly, it was held that, they were only continuing on a provisional basis and that they had a lien in the Ministerial wing. The version of the applicants was accepted and the T.A. filed before the Tribunal was allowed as per Ext.P1 order, which in turn is now under challenge in this Original Petition preferred by the State and the Director. 7. Heard the learned Senior Government Pleader as well as Sri.P.K.Manoj Kumar, the learned counsel for the respondents. 8. The learned Government Pleader submits that the Tribunal passed the order under challenge as if the applicants were seeking to come back to a particular Department from another Department, by virtue of the lien retained in the former Department. In the instant case, the Department is stated as one and the same, i.e., the Fisheries Department and the shifting was only from one wing to another wing of the same Department. It is also asserted that, by virtue of Note II to Rule 8 of Part II of O.P.(KAT)No.2770 of 2012 6 KS & SSR, the relief sought for by the applicants was not liable to be entertained and there is a total misconception of law, which resulted in the impugned order passed by the Tribunal, requiring interference by this Court, submits the learned Senior Government Pleader. 9. The learned counsel appearing for the respondents/ applicants submits that the contention raised that the applicants were given 'option' to go to the Executive wing itself is wrong. Same is the position with regard to the averment as to the regularization in service in the Executive wing and declaration of probation. At no point of time, was the service of the applicant regularized in the Executive wing; nor was there any instance of declaration of their probation as well in the said post. Such a posting/promotion was given on a provisional basis, only to meet the organisational requirement, for want of sufficient persons to man the concerned posts. The contents of the order Ext.P2 are also sought to be pressed into service, which clearly stipulated that the promotion would only be provisional and till the regular hands sponsored by the PSC joined service; further alerting the O.P.(KAT)No.2770 of 2012 7 applicants that they would not be having any claim to continue in the post. In so far as the service was not regularized in the Executive wing and their lien remained in the Ministerial wing itself, as borne by the placement given in the final seniority list published by the 2[nd] respondent in respect of LDC, no further submissions could have been made from the Government/ Director, as now sought to be projected before this Court. It was in the said circumstance, that the O.A. filed by the applicants was allowed which is not assailable under any circumstance, submits the learned counsel. 10. It is brought to the notice of this Court that, Note II to Rule 8 of Part II of KS & SSR cannot be pressed into service in the case of the applicants, in so far as the provisional promotion was given to them way back in the year 1984; whereas Note II came into existence only in the year 1986. After hearing both the sides, we find that there is considerable force in the submission made by the learned counsel for the respondents. Absolutely nothing is stated from the part of the Government as to the course and events pursued, pursuant to Ext.P13 verdict passed O.P.(KAT)No.2770 of 2012 8 by the learned Single Judge of this Court, which stands affirmed by a Division Bench in W.A.Nos.1502 & 1253/2006, as borne by Ext.P14. No case is put forth that, the said verdict has been subjected to challenge and as such, the position has become final. The benefit sought to be extended to the applicants was only the benefit which was extended to a similarly situated person; that too a junior to the 1[st] applicant. This alone has been ordered by the Tribunal in the instant case as well. We find absolutely no tenable ground so as to call for interference. The Original Petition fails and the same is dismissed accordingly. Sd/- ## **P.R.RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge O.P.(KAT)No.2770 of 2012 9